Religious Liberty and Judicial Deference

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself. The Supreme Court took a decidedly Thayerian approach to the First Amendment in the first flag salute case, Minersville School District v. Gobitis. That approach was short-lived, as Gobitis was swiftly overruled in West Virginia State Board of Education v. Barnette. Rather than deferring to political actors, Barnette treated the Constitution as placing certain rights “beyond the reach of majorities” and establishing them as “legal principles” that must be “applied by the courts.” Barnette’s approach to rights—rejecting a Thayerian “duty of deference” for First Amendment rights—has largely triumphed, even in other individual rights contexts. But a curious anomaly persists. Unlike in other areas of the law, the discredited Thayerian approach to the First Amendment from Gobitis was eventually adopted into the modern free exercise standard embraced by the Supreme Court in Employment Division v. Smith. As a result, many free exercise claims have been decided with precisely the kind of rational basis deference we long ago abandoned for other constitutional rights. This Article examines the relationship between religious liberty claims and Thayerian judicial deference. With the Supreme Court poised to reconsider Smith, this focus on deference differs from the standard scholarly and judicial approach, which tends to emphasize the debate over religious exemptions. Focusing instead on deference shows how Smith is an outlier, out of step not only with prior religious liberty cases but also with our broader approach to the enforcement of constitutional rights. Likewise, when religious liberty is viewed through the lens of deference, it becomes clear that, even without overruling Smith, the Supreme Court has been moving away from Thayerian judicial deference across a wide range of religious liberty disputes over the past decade. These deference-rejecting decisions cast the Religion Clauses as the “the heart of our pluralistic society,” that help “foster a society in which people of all beliefs can live together in harmony.” Those high goals are only attainable if religious liberty consists of judicially enforceable rights, rather than occasions for deference to the majoritarian governments that the Bill of Rights is supposed to constrain

The Constitutional Right not to Kill

Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith. This Article offers a new answer to this very old question: a federal constitutional right not to kill, protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and traditions.” This Article reviews the government’s historical ability to force unwilling citizens to participate in government-sanctioned killings across a variety of contexts, and concludes that the right not to kill passes the Court’s stated tests, and does so even better than previously recognized rights. The right not to kill also fits squarely within the zone of individual decision making protected by the Court’s decisions in Casey and Lawrence. Recognition of a constitutional right, of course, does not mean that the right can never be infringed. Rather, as with most rights, the constitutional right not to kill can presumably be trumped by a sufficiently compelling government interest and a narrowly tailored law. In the vast majority of cases, however, the government will not be able to meet this test, leaving individuals free to decide for themselves whether they are willing to participate in government-sanctioned killings

Unequal Treatment of Religious Exercises Under RFRA: Explaining the Outliers in the HHS Mandate Cases

Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ( HHS ) has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ( RFRA ). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking RFRA\u27s protection. The analysis in these cases is turning largely on whether courts find that the HHS mandate imposes a substantial burden under RFRA. RFRA prohibits the government from imposing a substantial burden on a person\u27s religious exercise unless the government proves that imposing the burden is the least restrictive means of advancing a compelling government interest. To date, every court to find a substantial burden has entered a preliminary injunction. Thus, determining whether or not the mandate imposes a substantial burden is crucial to the outcome of these cases. Why have six courts denied relief while most other judges have granted it? One part of the answer is that these courts have wrongly concluded that religious liberty rights disappear when an organization earns profits—an error I have discussed at length elsewhere. This essay will explore a second error made by these outlier courts in applying RFRA\u27s substantial burden test. Properly understood, RFRA\u27s substantial burden analysis examines whether the government is coercing a believer to abandon a religious exercise (i.e., religiously-motivated conduct or abstention from conduct). Once sincerity of the religious motivation is established—an issue the government has not been contesting in the mandate cases—the underlying religious reasons for the religious exercise should be entirely irrelevant

Constitutional Challenges: Religious Liberty and the HHS Mandate

A Brendan F. Brown Lecture Series address, given Wednesday, October 3, 2012, at The Catholic University of America Columbus School of Law in Washington, D.C

Constitutional Right Not to Participate in Abortions: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers, The

The article presents information the constitutional rights of healthcare provider to decide on whether to participate in abortion of pregnant woman. It includes information on Fourteenth Amendment Rights of healthcare providers that provides them a right to decide to involve in the procedure of abortion. It also discusses the historical overview of healthcare provider\u27s right to participate in abortion

Fool Me Twice: Zubik v. Burwell and the Perils of Judicial Faith in Government Claims

This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws

Administrative Power and Religious Liberty at the Supreme Court

The Supreme Court has recently seen an increase in the number of religious exercise cases in which the conflict was caused by an act of administrative power, rather than an act of legislative power. There are probably several reasons for this increase, including the growth, size, and flexibility of the administrative state, political convenience, and the fact that administrators tend to be specialists who may be unaware of or undervalue competing interests like religious liberty. While the sheer size, reach, flexibility, and specialization of the administrative state means we will likely continue to see more religious exercise conflicts caused by administrative power--and while there remains a danger of excessive judicial deference to agencies in these cases--in the long run this development can be positive for religious liberty. That is because the same attributes that make the administrative state likely to come into more conflicts with religious exercise (namely size, reach, flexibility, and specialization) also virtually guarantee that administrators will almost always have additional, less burdensome ways of achieving policy goals without burdening religious exercise. The net result will be more religious exercise cases and, at least in the short run, more courtroom losses for the administrative state. In the longer run, either agencies will learn from these losses and use their size and flexibility to pursue win-win solutions in which they achieve their policy goals while working around religious differences, or they will continue to lose cases and build up a stronger body of Free Exercise and RFRA precedents. There are recent indications that both the Department of Justice and individual agencies are learning this lesson, which suggests that both religious groups and agencies will be better off going forward

Smith, Stormans, and the Future of Free Exercise: Applying the Free Exercise Clause to Targeted Laws of General Applicability

Does the Free Exercise Clause extend to situations where the legislature deliberately targets a religious practice, but does so for neutral reasons and is willing to extend the ban to people who happen to engage in the same practice for non-religious reasons? While one can imagine reasonable arguments on both sides about the constitutionality of the Sunday morning alcohol ban, it seems absurd to say that the Free Exercise Clause is not part of the equation. Yet under the First Amendment analysis presently employed by many courts, that result is entirely likely

Political Speech—Restrictions on Ballot-Initiative Petitions, Buckley v. American Constitutional Law Foundation

The Supreme Court has repeatedly noted that ballot and election regulations raise difficult questions about the interplay between the First Amendment\u27s heightened protection for political speech, and states\u27 need to regulate ballots and elections to ensure fair and orderly democracy. When making the delicate judgments between protecting political speech and allowing states to regulate elections, the Court has traditionally stated precisely which test it was employing to evaluate individual restrictions. Last Term, in Buckley v. American Constitutional Law Foundation, the Court invalidated several of Colorado\u27s restrictions on the signature-gathering process for ballot initiative petitions. In so doing, the Court failed to identify which level of scrutiny it was applying for each of the restrictions in question and relied instead on certain unreviewed restrictions to render unconstitutional the specific regulations before it. The lack of clarity in the resulting opinion will make it difficult for lawmakers, lower courts, and the Court to create and evaluate election regulations